Mr. A. Hamid has moved the present constitutional petition to challenge the. Validity of the order, dated 22-6-1974, of the Chief Settlement and Rehabilitation Commissioner (respondent No. 1 whereby, pursuant to the application, moved by S. Muhammad Ashraf Kaka Khel (respondent No. 2) the property-in-dispute, comprising Shop No. CB-14/2765-115, Kotha No. CB-14/116/2795 and Balakhana No. CB-14/116/2795, situate in Qisa Khani Bazar, Peshawar City, in respect whereof, as a result of sale in favour of the petitioner, a permanent transfer deed had been issued in his favour, in 1961, was declared to have been conveyed in excess of the jurisdiction possessed by the Additional Settlement Commissioner, and as such without lawful authority and of no legal effect and it was added that the property should be resumed and disposed of in accordance with law.
2. Briefly put, the case of the petitioner is that the property was knocked down in an unrestricted auction in favour of one, Khande Khan for Rs. 76,000, on the 18tb of February, 1960 and that this auction was also approved. However, he backed out. After about 14 months of the approval of bid in February, 1960, so to speak, on the 6th of April, 1961, the petitioner moved the Settlement Commissioner (respondent No. 2) (has produced the photostat copy of the application and it is Exh. R-II/1) and it was in pursuance of this application that the Additional Settlement Commissioner, by his order, dated 30th May, 1961 (photostat copy Annex. A) transferred the property in-question, by private negotiations in the light of the instructions of the Chief Settlement Commissioner. Lahore contained in his memo. No. 4499-PI-Reb/69 dated 9th March, 1960, on the reserve price of Rs.
24,195 adding that the previous auction-purchaser had backed out. This order was conveyed to respondent No. 2 by a letter, dated 5-7-1961 (copy Annex. B) by the Deputy Settlement Commissioner. There were two applications before the Settlement and Rehabilitation Commissioner by respondent No. 2 and the other by Nasir Ahmad Khan but both failed, as will appear from the order, dated 17-11-1961 (copy Annex.C). Thereafter respondent No. 2 attorned to the petitioner, as will be evident from Annex-B, and he paid rent to him, as would appear from the photostat copies of receipts, Annex E,E/l, F and E/1. For good 11 years, respondent No. 2 had been paying him the rent. The latter was however, not reconciled and moved an application, dated 28- 11-1966, copy whereof produced by respondent No. 2 is Annex R-II/2 to the then Revenue and Rehabilitation Minister, West Pakistan and in pursuance thereof the Chief Settlement Commissioner, issued show cause notice, copy Annex. A, requiring the petitioner to show why the order of the Additional Settlement Commissioner, transferring the property in his favour should not be ignored as nullity. This he was to do on 18-10-1969. On dismember--ment of West Pakistan the file found its way to the N: W. F. P. And here the impugned order, as in Annex. I, was passed by the Chief Settlement Commissioner.
3. It may be mentioned that before the Chief Settlement Commissioner, his powers to pass the order were questioned but he repelled the objections in that behalf and held that he had powers to go into the matter under section 9 of the Displaced Persons (Settlement and Rehabilitation) Act, 1958.
4. In this constitutional petition, Mr. Karimullah Khan Durrani, who has argued the case for the petitioner, very ably has pressed into service the following grounds, in support of his contention that the order of the Chief Settlement Commissioner was without lawful authority and of no legal effect and that it shall, therefore, be so declared:
(1) order of the Additional Settlement Commissioner, dated 30-5-1961, as in Annexure A, was, not without jurisdiction;-
(2) Chief Settlement Commissioner had relied on PLD 1967 Pesh. 295 but that authority was distinguishable on the short ground that the person in whose favour the property had been knocked down was very much present and he was upholding the question in his favour;
(3) Even if there was some defect in the order of the Additional Commissioner dated 30-5-1961 since there was an appeal against the same order before the Settlement Commissioner and that appeal was unsuccessful, as it will appear from Annex. G, the order had become unexceptionable;
(4) the order of the Settlement Commissioner had attained finally under the law and was, therefore, binding upon all the parties concerned;
(5) application of respondent No. 2, before the Chief Settlement Commis--sioner was not competent in as much as (1) he was estopped by his conduct; (ii) he had no locus standi ; and (iii) after the 13th of June, 1962, when the revisional powers of the Additional Settlement Commissioner had been taken away he had no jurisdiction to entertain such question ;
(6) PTD in favour of the petitioner, issued on 8-6-1961 had rendered all the Settlement authorities functus officio ;
(7) powers of superintendence and control which have been invoked by the Chief Settlement Commissioner, under section 9(3) would not mean powers to upset judicial decision:
(8) The Chief Settlement Commissioner, having only administrative jurisdiction had no powers to recall the order, alleged to have been procured by braud; and
(9) Compensation poll was for the benefit of the claimants and, therefore respondent No. 2 being a local could not have any preference over the petitioner who was a claimant.
4. Before answers to the above questions can be attempted I should like to take up the all important questions, namely, whether there was a valid transfer of the disputed property, in favour of the petitioner by Annexure A. To my mind the fact that the petitioner addressed the Settlement Commis--sioner, and not the Additional Settlement Commissioner and that his application was not in a proper form, I wonder if some form was applicable, are of no consequence, if the Additional Settlement Commissioner had under the law powers to convey the property by private negotiations, as he has done.
5. It is not disputed that the property in question was knocked down in favour of one, Khandey Khan in February, 1960, in an open public auction and that auction in his favour was also approved by the Additional Settlement Commissioner. The petitioner contends and in this respect he is supported by the order of the Additional Settlement Commissioner that Khandey Khan had backed out and, therefore the property was conveyed to the petitioner on the basis of private negotiations.
In para 22(11) of his petition, the peti--tioner categorically asserts that the transfer in his favour was in pursuance of memorandum, dated 16-3-1960 and that made the Additional Settlement Com-- missioner competent to transfer the property on its reserve price. Annexure also refers to the aforesaid memorandum. The memo appears on pages 125 and 126 of the old Settlement Manual and it is being reproduced, along with the title and its No. It is as follows:- Auction of shops (Memo. No. 4499-PI-Reh/60, dated 9th/16th March, 1960. With reference to this office Memorandum No. 839-PI-Reh/60, dated 9th January, 1960 on the above subject. It has been reported that in some cases the highest bid offered in the auction of shops has been below the reserve price fixed on the basis of 40 years gross annual rent for 1946. In some cases there have been no bids as it was proposed to start the bid at the reserve price. The Chief Settlement Commissioner has decided that in suitable cases the Chairman, Auction Committee may start the bid below the reserve price. If the highest bid offered is less than the reserve price; the Additional Settlement Commissioner of the area concerned may at his discretion transfer the shop to any person by negotiation who is prepared to offer a reasonable price.
A second look at the above quotation will show that since in some cases the highest bid offered in the auction of shops was below the reserve price and in some cases there were no bids when there was a proposal to start the bid at the reserve price, the memorandum, therefore permitted the Chairman Auction Committee that in suitable cases he can start the bid below the reserve price.
Furthermore, if the highest bid o'fered was to be less than the reserve price, then the Additional Settlement Commissioner may in his discretion transfer the shop to any person who was to offer a reasonable price.In the instant case it is admitted that the reserve price, along with 15 % was Rs.
24,196 and the last bid which was accepted was for Rs. '6,000. This bid was evidently above the reserve price by at least Rs. 50,000, and auction in favour of Khandey Khan had been approved. It would follow that the memo was not attracted and as such transfer in favour of the petitioner was in colourable exercise of powers.
6. It was presumebly due to aforesaid reason that the learned counsel for the petitioner did not place much reliance on the above-quoted memorandum and he pressed into service a letter of the Government of Pakistan, Ministry of Rehabilitation and Works, dated 17th June, 1960 to the address of the Chief Settlement and Rehabilitation Commissioner, Lahore on the subject "Revised orders for the disposal of certain properties" which appears on page 87 of the Writ Petition No. 612 of 1965 (Photostat copy of which is being placed on this record, as Exh. H/1). The relevant parts of the letter read: Dy No. 194/PS/Secy/60 Government of Pakistan.
Ministry of Rehabilitation and Works Rawalpindi, the 17th June, 1960.
From: S. H. Raza Esquire, SQA, CSP, Secretary to Government of Pakistan.
To: The Chief Settlement & Rehabilitation Commissioner, Pakistan, Lahore.
Subject: Revised orders for the disposal of certain properties.
Sir, I am directed to say that the Central Government in exercise of the powers conferred on it by clause (b) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is pleased to accord its approval to the disposal of certain properties in the manner specified below.
(a) .
(b).
(c) Houses, shops, industrial concerns (not allotted by the Board) and vacant building sites which are not disposed of under the scheme already in force/or by unrestricted public auction may be transferred by the Additional Settlement Commissioner concerned by negotiation to the occupants of such properties or any other person who is prepared to pay the prevailing market value.
(d) The Chief Settlement Commissioner is authorised under sub-para. (3) of para. 24 of the schedule to the Act to cancel the transaction relating to the transfer of property without ejecting the transferee and to forfeit an amount equal to 25 " of the amount paid by such transferee in cash or by adjustment against the amount of compensation admissible to him or to the property by unrestricted public auction.
(Sd.)S. M. Raza, Secretary.
7. It will be seen that the above letter was issued by the Central Government in the exercise of its powers under section 10 (b) of the Act and that it accords the approval of the Central Government to the disposal of house and shops which were not disposed of under the Scheme already in force, or by unrestricted public auction and powers to transfer in this behalf were given to the Additional Settlement Commissioner and that the latter could transfer the shops and houses to any person who was prepared to pay the prevalent market value. In the instant case, it is not disputed that the petitioner paid the prevailing market value but this was very vehe--mently urged that firstly the property was not disposed of under this letter and in this behalf a reference to Annex. A was conclusive and secondly it was a case where an unrestricted public auction had been conducted and, therefore the contents of the letter were not applicable in terms to the transfer in favour of the petitioner. In other words there bad been in fact disposal of the property by unrestricted public auction for Rs. 76,0.0 and that disposal was complete when the auction was approved in favour of Khandey Khan. Again there was nothing on the record to show that Khandey Khan was given a show cause notice for resumption or that he had otherwise backed out. Be that, as it may, when the property had been once put to unrestricted public auction and even the first bid exceeded the reserve price by Rs. 11,000, and there have been 74 bids thereafter, what could be the justification for the view that there were no prospects of getting higher bid than the reserve price in another re-auction.
7-A. The learned counsel for the petitioner also contended that there were also Rules on the subject that the property could not be sold by private negotiations rather it should have put to auction once again.
8A. In this context I should like to notice the amendments in section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1858. Section, as originally enacted, was to the following effect:- Power to transfer property front the compensation pool.--Subject to the provision of this Act, and the Rules made thereunder, the Settlement Commissioner may transfer or dispose of any property out of the compensation pool-
(a) on evaluation basis or by sale by means of auction or otherwise in accordance with the provisions of the First Schedule.
(b) in such manner as may be prescribed.
After its amendment by Ordinance LIII of 1959, it would read: Subject to the provisions of this Act and the Rules made thereunder, the Chief Settlement Commissioner may transfer or dispose of any property out of the Compensation Pool-
(a) on evaluation basis, or by sale by means of auction or otherwise in accordance with the provisions of the Schedule; or
(b) in such other manner as may be approved by the Central Govern--ment.
There was yet another amendment by Ordinance II of 1962 and thereafter the relevant parts of section 10 read:-
(1) Subject to the provisions of this Act and the Rules made thereunder, the Chief Settlement Commissioner, or any other officer authorised in this behalf by him, may transfer or dispose of any property out of the compensation pool on evaluation basis or by sale, by means of auction or otherwise, in accordance with the provisions of the Schedule;
(2) Notwithstanding any thing contained in subsection (1), the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem proper.
(3) .
(4) .
Since the memo, dated 9th/16th March, 1960 reproduced in para 5 above, and the memo, dated 9th January, 1960 alluded to therein, which appears on page 103 of the old Settlement Manual by Latif and the instructions of the Government of Pakistan, as in their letter, dated 17th June, 1960 were issued when the first amendment was in force, the instructions in paragraph "C" the letter, dated 17th June, 1960, cannot be brushed aside for the reason that the manner indicated in the instructions was against the Schedule, which on a reference to paragraphs 6, 7, 11 and 12 of the Schedule would no doubt show the property, whether it was treated as a house or shop was to' be transferred to the highest bidder in an unrestricted public auction and where it could not be so transferred had to be disposed of in such manner and subject to such terms and conditions, as may be prescribed, the' expression, "prescribed" having being defined in section 2(7) of the Act would mean pursuant to a Rule notified in an official Gazette, vide section 35 of the Act.
9. But I should not be taken to have held that instructions of the. Central Government, as contained in clause "C" of their letter, dated 17th' June, 1960, also applied to a case where the property had been once disposed' C of by unrestricted public auction. In respect of such properties the letter is silent. It does not say how those properties were to be resumed and in what circumstances. I am clear in my mind that clause "C" of the letter only refers to cases where a property has not been disposed either under a scheme or in unrestricted public auction which in this case took place pursuant to the requirement of the instructions in the schedule.
10. As already indicated for auction of shops instructions were issued by the Chief Settlement Commissioner in the 9th of January, 1960. These instructions appear on pages 103 and 104 of the old Settlement Manual. Instruction No. 2 provides the terms and conditions of auction prescribed in the case of industrial concern were to be adopted mutatis mutandis to the case of shops as well.
The instructions alluded were promulgated in scheme No. 11, clause 23 of which provides If a non claimant displaced person or a local does not pay the entire purchase money within the prescribed period the earnest money deposited by him will be forfeited and the property will be re- --auctioned.
Needless to say that this scheme and instructions existed when the letter of the 17th June, 1960 was issued and if there was any intention that there was to be no public re-auction of the properties which had been once sold by unrestricted public auction, the letter would have expressed itself very clearly on the point. Rather the very fact the Government was forced to promulgate scheme No. VIII on the 17th June, 1965 and, therein specific instructions were laid down for the assessment of the properties (see Chapter D 11 of the Scheme) would show that the properties once disposed by un--restricted public auction ceased to be available properties till those were resumed in accordance with Chapter 11 of the Scheme.
11. I should like to also place on the record that clause (d) of the letter of the 17th June, 1960 (see para. 6) was not unmindful of the provisions, contained in paragraph 24 of the Schedule and therein gave powers to the Chief Settlement Commissioner to cancel the transfer of properties without ejecting the transferees. This clause was explained in the memo issued by the Chief Settlement Commissioner as it will appear from. Pages 153 and 155 of the old Settlement Manual.
Therein it has been laid down that intention was that in case of default of payment by a transferee, entitled to instalments. The property could be disposed of without ejecting him physically and that on failure of transferee to pay two consecutive instalments, 30 days; notice should be given to him and furthermore on the expiry of the same only provisional transfer order issued in his favour might have been cancelled. It would follow that under instructions, contained in paragraph 24 of the Schedule before January, 1964 it was the Settlement Commissioner who could order the cancellation and it was indeed presumptuous on the part of the Additional Commissioner to have observed that Khandey Khan had backed out and, therefore, the property could be passed on negotiation basis. E There should have been a cancellation order in the first instance by the Settle- -ment Commissioner, of course., after compliance with the instructions, regard--ing the notice etc. On the subject.
12. In this context I should also like to place on the record that the~ powers that now remain with the Chief Settlement Commissioners are than o of general superintendence and control and that he has no powers to upset the judicial decisions. The powers in this behalf reserved by section 9(30 of the Act are even less than the powers of the High Court as in Article 203 of the Constitution which says: Each High Court shall supervise and control all Courts subordinate to it. To my mind the words "supervise is more exhaustive than the expression" general superintendence "but for the purpose of the present case I need not dilate upon that. For the law on the point the learned counsel for the petitioner invited my attentions to S. Ahmad Abbas Zaidi and others v. Settle--ment Commissioner, Rawalpindi and another (PLD 1968 Lah. 166) while the learned counsel for the respondent referred me to Karim Baksh v. Mst. Mubarik Jan (PLD 1970 Pesh. 169) and Mst. Farida Parwin v. Qadeerudin Ahmad (PLD 1971 Kar. 118) I will, however, advert to and rely heavily on a Full Bench Authority in Abdur Rehman v. Mst. Chaman Ara (PLD 1972 Kar. 164) in paragraph 16 whereof Qadeeruddin Ahmad, C. J. Expressed himself as follows:- A glance at it would show that the article mentions no relief which may be given to a party under it.
I does not even refer to any proceedings, order, judgment, relief or remedy. They are all outside the ambit of the provisions except of course to the extent that conduct of the Courts themselves may be involved in them. It merely confers on the High Court the power of supervision and control over its subordinate Courts. This power has nothing to do with grievances of parties or with doing justice to them. The High Court is under this Article concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their own duties apart from the problems and interests of the parties. Such duties are to attend the Courts regularly and punctually : to hear and decide those cases only which fall within their jurisdiction and not to ousting their jurisdiction to obey legitimate directions of their superior authorities ; to know the law and to conduct themselves like judicial officers. Their judicial orders and judgments are subject to scrutiny, on appeal or revision, in accordance with the provisions that confer those jurisdiction on Courts of various grades. Every appeal and every revision does not lie to the High Court, nor is the power to hear appeals and revisions inherent in Courts. This power is a creation of law ; therefore, they do not exist unless con--ferred by law. Thus where these powers have not been conferred by law they cannot be exercised and should not be exercised in order to give relief to an aggrieved party by way of supervision and control of subordinate Courts. Mr. Justice Muhammad Haleem did not set aside the appellate judgment on the consideration that one of the parties was aggrieved but because the appellate Court had to be checked and controlled since it had acted without jurisdiction. The two cases which were transferred by the two judgments given at Lahore were so dealt with because the Courts were found to be unfit for hearing them."
The above question and S. Shabbir Hussain and 2 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1973 Note 110 at p. 166) fortifies me in my conclusion that the Chief Settlement and Rehabilitation Commissioner could not set aside the order, in the exercise of the powers under section 9(3) of the Act but that will not mean that this petition must be accepted.
This Court, in the exercise of its constitutional jurisdiction has full discretion not to interfere with the orders, which if recalled will result in perpetuation of injustice or resuscitate orders which were void ab initio. Reference with advantage may be made to the following authorities.
Khyber Tobacco Co. Ltd. v. Ahyber Tobacco Co. Ltd. Labour Union 1976PLC98.
S. Muhammad Abbas Zatdi and others v. Settlement Commissioner, Rawalpindi and others PLD 1968 Lab. 166.
The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331.
Mst. Hajiani Fatima Bat and 6 others v. Ibrahim and 13 others PLD 1972 Kar. 610.
Nawab S. Raunag Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236.
13. There are no doubt authorities : Aminuddin v. Settlement Commr. And others (1973 SCMR 624), Syed Murtd Hussain Shah v. Mufti Muhammad Yusuf Ali and others (1974 SCMR 8), S. Anwar Hussain Sant v. Sarfaraz Ahmad and another (PLD 1971 SC 669), Manzoor Ahmad and 4 others v.
Chief Settlement and Rehabilitation Commis--sioner, Lahore and 2 others (PLD 1975 Lab. 1331), Muhammad Shaft v. Mujdin Khan and 3 others (PLD 1976 Lab. 7) and Mst. Rajiani Fatima Bat and (PLD 1972 Kar. 610) others v. Ibrahim and 13 others (13), in support of the proposition that where a PT D has been issued, the Settlement authorities become functus officio and eversince the deletion of Rules 6 and 7 in the Permanent Transfer Rules, even such transfers cannot be set aside on the ground of fraud by tie Settlement authorities, but a reference to Miss Zinat Nisa and 7 others v.
Settlement Commissioner Karachi (PLD 1976 Kar. 595) and Mst. Chanda Begum v. Settlement Commissioner and another (PLD 1977 SC 503) would show that where an order is void ab initio, any subsequent order passed on the basis of that would also be void and of no legal effect.
14. There is yet another authority which supports the proposition that an order is to be treated as void when it is made by a Court, tribunal, or other authority which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. It further says that such an order would amount to "a usurpation of power unwarrant--ed by law", and accordingly it would be a nullity. I have in my mind the Chief Settlement Commissioner v.
Muhammad Fazil and others (PLD 1975 SC 331), wherein Anwarul Haq, J , as his Lordship then was, has made aforementioned observa--tions. His Lordship in the above cited authority has proceeded on to discuss how an order, which is a nullity, can be attacked and has held that even a tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud. It is true that his Lordship has observed in that very authority that in the matter of collateral impeachment of such an order, the position would be somewhat different, elaborating that whereas a superior Court or a Court of special jurisdiction has the power of nullifying an order on the ground of want of jurisdiction in the authority making it, such a power is not available to a tribunal which acts either in an administrative capacity, or enjoys only a special or limited jurisdiction in a defined sphere. But further on though in that case his Lordship came to the conclusion that Officer on Special Duty could not cancel the Entitlement Certificate on the ground that the verification of the claim had been obtained by practising fraud on the Claims Organization, but declined to validate the transfer in favour of the respondent observing that discretionary relief could not be granted to help petitioner retain ill-gotten gains. In the instant case though it cannot be reasonably disputed that the Chief Settlement Commissioner had no power to upset the judicial decision of the Settlement Commissioner which favoured the petitioner and reference in this behalf to A. S. Kazi v. Government of Pakistan and 6 others (1975 SCMR 191) and Syed Shabbir Hussain and 2 others v. The Chief Settlement & Rehabilitation Commissioner and 2 others (PLD 1973 Note 110 at p. 166) appears to be in point, but if the present petition was to be allowed, then the effect would be that the petitioner through the process of this Court will be enabled to retain a property, transfer whereof in his favour was a nullity.
15. It is true that respondent No. 2 had admitted his defeat and had said that after his success before the Settlement Commissioner he acknowledg--ed the petitioner to be his landlord and that he has been paying rent to him for good eleven years, but this acknowledgment proceeded on the assumption that transfer in favour of the petitioner was valid. As has been already discussed, transfer in favour of the petitioner was not legal and was for that reason a nullity. It, therefore, seems to me that the question of estoppel by conduct would not arise, especially when it was on the basis of Mis--apprehension and the fact of the matter was that there was no title in the petitioner. I am, therefore, clear in my mind that illegality of the transfer in favour of the petitioner could be set up by respondent No. 2 by way o defence. Be that as it may, there is an other aspect of the case, namely, that even if in the present case respondent No. 2 had not challenged the claim of the petitioner, there is stout resistance by Chief Settlement and Rehabilitation. Commissioner (respondent No. 1) and his counsel has been all along arguing that transaction in favour of the petitioner was nullity. For the reasons it, appears to me that the emphasis on the basis of estoppel is misplaced. At this stage I need not anticipate who is going to get the property to question eventually. Nevertheless I hope, it would be disposed of in accordance with law.
16. On the view of the matter that I take I will dismiss this petition without making any order as to costs.